ARCHIVED - Telecom Costs Order CRTC 2002-10

Telecom Costs Order CRTC 2002-10

Ottawa, 13 September 2002

Action Réseau Consommateur, Fédération des Associations Coopératives d'économie familiale, and the Public Interest Advocacy Centre application for costs -- Public Notice CRTC 2001-34

Reference: 8665-C12-13/01 and 4754-203

Background

1.

By letter dated 31 January 2002, Action Réseau Consommateur (ARC), Fédération des associations coopératives d'économie familiale, and the Public Interest Advocacy Centre (ARC et al.) applied for costs with respect to their participation in the proceeding initiated by CRTC seeks public input on telemarketing rules, Public Notice CRTC 2001-34, 5 March 2001 (the PN 2001-34 proceeding).

Position of parties

2.

ARC et al. submitted that it had met the criteria for an award of costs set out in section 44 (1) of the CRTC Telecommunications Rules of Procedure (the Rules). In particular, ARC et al. argued that:

3.

ARC et al. requested that the Commission fix their costs at $17,663.51. ARC et al. included a bill of costs with their application. By letter dated 5 February 2002, they amended the amount to $16,263.06 and provided a new bill of costs.

4.

ARC et al. submitted that the appropriate respondents to their costs application were Aliant Telecom Inc. (Aliant Telecom), Bell Canada, MTS Communications Inc. (MTS), Northwestel Inc. (Northwestel), Saskatchewan Telecommunications (SaskTel), TELUS Communications Inc. (TCI), AT&T Canada Corp. (AT&T Canada), Call-Net Enterprises Inc. (Call-Net) and the Canadian Marketing Association (CMA).

5.

In response to the application by ARC et al., the Commission received submissions by Aliant Telecom, Bell Canada, MTS, Northwestel, SaskTel (collectively, the Companies), EastLink Telephone (EastLink), TCI, the Canadian Fax Telebroadcasting Coalition (CFTC) and the CMA.

6.

In its submission dated 4 February 2002, TCI stated that it did not oppose an award of costs to ARC et al., in view of the nature and record of their involvement in the PN 2001-34 proceeding. TCI did, however, object to ARC et al.'s proposal regarding the list of respondents. TCI noted that interrogatories were also submitted to Canadian Wireless Telecommunications Association, the CFTC, EastLink, Futureway Communications Inc., GT Group Telecom Services Corp., Microcell Telecommunications Inc., Primus Telecommunications Canada Inc. and Vidéotron Télécom (1998) ltée. In addition, TCI noted that TouchLogic, the Canadian Survey Research Council and the Corporation of the City of Thunder Bay - Telephone Department participated in the PN 2001-34 proceeding. TCI submitted that these parties should be added to the list of respondents as each of these parties had been active in the PN 2001-34 proceeding and could be directly affected by the outcome of the proceeding.

7.

In its submission dated 6 February 2002, the CFTC submitted that ARC et al. should assume sole responsibility for their costs, in the same manner as the other participants to the PN 2001-34 proceeding. It submitted that ARC et al. chose to participate in the PN 2001-34 proceeding and that their choice was no different than that made by other organizations such as the CFTC or the CMA. The CFTC further stated that it did not accept TCI's position that the CFTC should be allocated a portion of the costs. In this regard, the CFTC submitted that section 44 of the Rules states that the Commission may award costs to be paid by the regulated company and that it was neither regulated nor a company.

8.

In its submission dated 7 February 2002, EastLink did not object to an award of costs to ARC et al. but opposed the suggestion that it be named as a respondent. EastLink submitted that it was not involved at the outset of the PN 2001-34 proceeding and that it had not played an integral role in the proceeding in comparison to other participants. EastLink also argued that its minor involvement had not caused ARC et al. to become any more involved in the PN 2001-34 proceeding.

9.

In their submission dated 8 February 2002, the Companies stated that they did not oppose ARC et al.'s entitlement to costs or the revised amount. However, they objected to the list of proposed respondents. The Companies concurred with TCI's comments and agreed that the payment of any cost award should be allocated among the parties to the PN 2001-34 proceeding in proportion to their interest and participation.

10.

In its submission dated 5 February 2002, the CMA argued that ARC et al. were voluntary participants in the PN 2001-34 proceeding and should assume sole responsibility for their own costs. The CMA also argued that it is a not-for-profit association and not a regulated company as defined in section 2 of the Rules.

11.

In a letter to the CMA, dated 1 March 2002, Commission staff explained that section 56(2) of the Telecommunications Act (the Act) gives the Commission a general power to make cost awards and to direct, without limitation, by whom such costs are to be payable. It was also noted that the Commission had, in previous costs orders, directed unregulated respondents to pay for costs.

12.

By letter dated 5 March 2002, the CMA replied that it was a not-for-profit organization with limited resources. The CMA argued that it would be inappropriate to ask one not-for-profit organization to contribute to the costs of another not-for-profit organization.

13.

ARC et al. did not file any reply comments.

Commission determinations

14.

The Commission finds that ARC et al. is representative of a class of subscribers that has an interest in the outcome of PN 2001-34 proceeding. The Commission also finds that ARC et al. participated in the PN 2001-34 proceeding in a responsible manner. The Commission also considers that ARC et al. filed submissions, interrogatories, responses to interrogatories, comments and reply comments which contributed to the Commission's better understanding of the issues.

15.

The Commission therefore finds that ARC et al. meets the criteria for an award of costs under section 44(1) of the Rules.

16.

The Commission also finds that the amount claimed by ARC et al. was reasonably and necessarily incurred and should be allowed.

17.

The Commission is of the view that this is an appropriate case in which to dispense with taxation and fix the costs in accordance with the streamlined procedure set out in New procedure for telecom costs awards, Telecom Public Notice CRTC 98-11, 15 May 1998.

18.

With respect to the issue of the appropriate respondents, the Commission notes that it has generally determined that the appropriate respondents to an award of costs are the parties who have a significant interest in the outcome of the proceeding and have participated actively in the proceeding. In addition, the Commission considers that it can order an unregulated entity to pay costs under section 56(2) of the Act, which prescribes that the Commission may order by whom any costs are to be paid.

19.

The Commission considers that the Companies, TCI, AT&T Canada and Call-Net have a significant interest in the outcome of the PN 2001-34 proceeding, and that these parties have participated actively throughout the proceeding.

20.

The Commission also considers that the CMA has a significant interest in the outcome of the PN 2001-34 proceeding because it represents many telemarketers across Canada upon whom the decision may have an important impact and participated extensively in the PN 2001-34 proceeding.

21.

The Commission finds, therefore, that the appropriate respondents to this application are the Companies, TCI, Call-Net, AT&T Canada and the CMA.

22.

In allocating the responsibility for the payment of costs among respondents, the Commission notes that it has often divided responsibility based on telecommunications services revenues from the previous year. However, the Commission also notes that it has departed from this approach to make collection of an award easier for applicants or to reflect situations where issues may be of greater importance to certain respondents. With regard to the present application, the Commission finds that the approach of dividing responsibility for a costs award on the basis of telecommunications revenues would require ARC et al. to collect negligible sums of money from some respondents.

23.

The Commission also recognizes the fact that an applicant may face a significant administrative burden if it is required to collect small amounts from many respondents.

24.

Therefore, the Commission finds that the responsibility for the payment of costs should be allocated as follows:

Bell Canada, on behalf of the Companies

50%

TCI

20%

AT&T Canada

10%

Call-Net

10%

CMA

10%

25.

Consistent with its general approach, articulated in Action Réseau Consommateur, the Consumers' Association of Canada, Fédération des associations coopératives d'économie familiale and the National Anti-Poverty Organization application for costs - Public Notice CRTC 2001-60, Telecom Costs Order CRTC 2002-4, 24 April 2002, the Commission makes Bell Canada responsible for payment on behalf of the Companies.

Direction as to costs

26.

The Commission approves the application by ARC et al. for costs with respect to their participation in the PN 2001-34 proceeding.

27.

Pursuant to section 56(1) of the Act, the Commission fixes the costs to be paid to ARC et al. at $16,263.06, and directs that the award of costs to ARC et al. be paid forthwith by Bell Canada, on behalf of the Companies, TCI, AT&T Canada, Call-Net and CMA, according to the proportions noted in paragraph 24.

Secretary General